IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ERICA G. BENSTON, a.k.a. ERICA ) G. JOHNSON
, 1 ) ) Appellant, )

)

v. ) C

. A

. No: S22A

- 02

- 001 MHC ) HERTRICH COLLISION CENTER ) OF SEAFORD and ) UNEMPLOYMENT INSURANCE ) APPEAL BOARD, ) ) Appellee s

. )

ORDER Submitted: May 2 , 2022 Decided: May 1 2 , 2022 Upon Consideration of an Appeal of a Decision of the Unemployment Insurance Appeal Board, DISMISSED.

Erica G. Benston, Selbyville, Delaware, Pro Se Appellant

. Victoria E. Groff, Es quire, Assistant Attorney General, Department of Justice, Wilmington, Delaware, Attorney for Appellee the Unemployment Insurance Appeal Board.

CONNER, J.

1 The notice of appeal refers to Appellant as “Erica Gail Benston (Johnson).” Documents in the Unemployment Insurance Appeal Board record refer to Appellant as “Erica Gail Johnson.”2

This 1 2 th day of May
, 2022, it appears to the Court that:
1) On April 8, 2021, a Department of Labor Division of Unemployment
Insurance Claims Deputy (“Claims Deputy”) denied an unemployment benefits
claim filed by Erica G. Benston a.k.a. Erica G. Johnson (“Benston”)

. 2) On April 20 , 2021, Benston filed an untimely appeal to a Department
of Labor Division of Unemployment Insurance Appeals Referee (“Appeals
Referee”). 2 The Appeals Referee held a hearing on July 6, 2021, to determin e

whether Benston had good cause for filing a late appeal. Benston failed to
appear at the hearing. T hat same day , the Appeals Referee dismissed Benston’s
appeal and affirmed the Claims Deputy ’s determination.
3) On July 19, 2021, Benston filed an untimely appeal to the
Unemployment Insurance Appeal Board (the “Board”). 3 On August 11, 2021,
the Board held a hearing regarding Benston’s appeal of the Appeals Referee’s
decision. On September 9, 2021 , the Board denied further review of the
untimely appeal and affirmed the decision of the Appeals Referee. The Board

decision became final on September 19, 2021.
4) On February 4, 2022, Bens t on appealed to this Court. 4 On March 2,

2022, Appellee Hertrich Collision Center of Seaford , Benston’s former

2

. See 19 Del. C. 3318(b). 3 See 19 Del. C. § 3318(c). 4 See Super. Ct. Civ. R. 72.3

employer, notified the Court that it will not be participating in the briefing
schedule. On March 16, 2022, Benston filed an opening brief. On April 12,
2022, the Board filed an answering brief urging the Court to dismiss the appeal

due to its untimeli ness

. On May 2, 2022, Benston notified the Court that she did

not intend to file a reply brief.
5) The Court lacks jurisdiction to hear this appeal due to the untimely
filing of the appeal to this Court, as well as Benston’s failure to exhaust her

administrative remedies.
6) Nineteen Del. C. § 3323(a) states in part that, “[w]ithin 10 days after
the decision of the Unemployment Insurance Appeal Board has become final,
any party aggrieved thereby may secure judicial review thereof by commencing
an action in the Superior Court . . . .” 5 Accordingly, Benston was required to
file her appeal by September 29, 2021, which she failed to do. There is no

indication that the lateness was caused by c ourt personnel. 6

7) Furthermore , the Court lacks jurisdiction due to Benston’s failure to

exhaust he r administrative remedies. Under 19 Del. C. § 3322(a), this Court is
prohibited from reviewing Board appeals when administrative remedies have

5 19 Del. C. § 3323(a). 6 Taylor v. Powell , 115 A.3d 1216 (Del. 2015) (TABLE) ( “ Unless an appellant can demonstrate that the failure to file a timely notice of appeal is attributable to court

- related personnel, an untimely appeal cannot be considered.”); Draper King Cole v. Malave , 743 A.2d 672, 673 (Del. 1999).4

not been exhausted. 7 By repeatedly failing to file a timely appeal below, and by
failing to appear at the Appeal s Referee hearing, Benston forfeited her right to
appeal the merits of her case. Benston has not exhausted her administrative

remedies , and thus the Court lacks jurisdiction over this matter. 8

8) Under Superior Court Civil Rule 72(i) , an appeal of a Board decision
may be dismissed for reasons including the “untimely filing of an appea l,” 9 and

the failure to exhaust administrative remedies. 10

9) Accordingly
, this matter is DISMISSED pursuant to Superior Court

Civil Rule 72(i)

.
IT IS SO ORDERED

.

/ s/ Mark H. Conner Mark H. Conner, Judge

cc: Prothonotary

7 19 Del. C. § 3322(a) states in relevant part that “judicial review . . . shall be permitted only after any party claiming to be aggrieved thereby has exhausted all admin istrative remedies as provided by this chapter.” 8 Miller v. Hersha Hosp. , 2013 WL 2296307, at *2 (Del. Super. Apr. 17, 2013); see also Griffin

v. Daimler Chrysler , 2000 WL 33309877, at * 1

– 2 (Del. Super. Apr. 27, 2001).
9 Id. 72(i). 10 Supra note 8.